On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FN-10-115-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
The Law Guardian for three children, now ages two, three, and four, appeals from the judgment of the Family Part finding insufficient evidence that defendant-parents had abused or neglected the children because of domestic violence in the home. The Division of Youth and Family Services (DYFS) joins in the appeal. We have stayed the Family Part's order to return the children to the parents pending resolution of this appeal.
Although the Family Part judge carefully and conscientiously analyzed the extensive record and made findings of fact supported by the record, we conclude that the judgment was based on an overly narrow view of the claims made by DYFS and the meaning of domestic violence in the context of abuse or neglect of children. We also conclude that evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children. We reverse and hold that DYFS proved the need for protective services for these children within the meaning of abuse or neglect contained in N.J.S.A. 9:6-8.21c(4).
Defendant-father, I.H.C., is now thirty-seven years old. He has been unemployed throughout his adult life because of medical and psychological disabilities. Defendant-mother, D.C., is now twenty-seven, and she is also unemployed because of physical and psychological conditions. In their childhood, both were victims of abuse. Neither has received adequate treatment for their serious psychological conditions. They have limited education because of their disabilities and the circumstances of their childhood. The father cannot read. The mother dropped out of high school before finishing the tenth grade.
In 2008 to early 2009, the couple lived in Hunterdon County with their three children, a boy A.C. born in December 2005, a girl J.C. born in February 2007, and a girl H.C. born in April 2008. The father was married two previous times and has other children, whom he does not see or support.
DYFS became involved with the family on December 16, 2008, through a referral alleging that the children were being strapped and confined for unusual amounts of time within the home in child booster seats and that domestic violence occurred in the home. The next day, DYFS sent two case workers to the home to investigate. The children were strapped in booster seats when the DYFS workers arrived, but they appeared healthy and unharmed. The mother explained that the children were fed in the booster seats and remained in them for a short period after a meal. She denied that any domestic violence had been committed against her. The home was clean and orderly, although it contained some unusual decorative features, such as skulls and knives. After inspecting the home and speaking with both parents, DYFS determined that the referral of abuse and neglect of the children was unfounded.
A day later, on December 18, 2008, DYFS received a second referral alleging physical abuse of the children and domestic violence. Before DYFS investigated this second referral, the family's neighbor called and said she had been handed a disturbing letter from the mother a few days earlier. DYFS retrieved the letter. It was a handwritten note, dated December 11, 2008, and was signed in the name of defendant-mother. With cross-outs omitted, it said in full:
If anything may happened to me please do an altops on me b/c My husband has done something to me. If there is drugs in my system then him or some of his friends put them there b/c I don't do drugs. Hes thrend to have me killed or kill me himself hes alread tried it a few times. Im scare to leave b/c I will be killed. Im afread that he might hurt my children if they are keeped in his care. I know that one day he will kill me and Im scared to death that he will. Im very afread of him. Im scared for my life when he's around. Hes always putting his hands on me. He's already stabed me with a screwdriver in the hand. Im afread for my life. Please do an investagtion on my death b/c I would be murdered by my husband or his friends. He teaches my son how to kill someone at the age of 3.
DYFS collected additional information, including several police reports dated from October 2007 through May 2008 documenting calls of loud arguing in the home. The neighbor also turned over tape recordings she had made of arguments in the home in 2006 and 2007. DYFS contacted the father's former wives and received information about his relationships with them. By the time DYFS workers returned to the home to investigate the second referral on December 18, the family had left to spend the holidays in Pennsylvania. During the next several weeks, defendant-father was in contact with DYFS by telephone but refused to disclose their location.
When the family returned to New Jersey on January 9, 2009, DYFS workers went to the home immediately to investigate. They spoke to the mother alone in the home and to the father at a police station. The father denied he had committed any domestic violence against his current family or against his ex-wives and said that he was the victim of domestic violence by one of them.
The mother again denied that there was domestic violence in the home. When shown the letter provided by the neighbor, she became angry and accused the neighbor of having written it. Asked about the reference to being stabbed with a screwdriver, she said it was an accident.
A DYFS worker noticed that the bedroom windows were nailed shut. In response to additional questioning, defendant-mother said she does not go anywhere without her husband because she does not have a driver's license. Questioned about how she would seek help in the event of danger to herself or the children since her husband kept the only working cell phone in the house, she said she would charge the battery in another cell phone, and it can be used to call 911 even if it is inactive. The case worker tried to persuade the mother to leave the home with the children and go to a safe place that DYFS would provide, but she refused. Upon learning that DYFS intended to remove the children, and given another opportunity to go with them to a safe place, defendant-mother angrily asked whether she was being forced to choose between her children and her husband, and then said "take them."
DYFS removed the children from the home pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 30:4C-12 and placed them in emergency foster care. It filed a verified complaint seeking protective custody and supervision. The return date of an order to show cause on the complaint was adjourned until February at the request of defendant-parents while they sought private counsel.
The court held a hearing pursuant to N.J.S.A. 9:6-8.31, -8.32 concerning the emergency removal of the children on February 19 and March 12, 2009. Each parent was represented by a privately retained attorney. In addition to the DYFS case worker, the neighbor and defendant-mother testified. The father attended only the March 12 session and did not testify. The main focus of the hearing was on the letter quoted previously although substantial other evidence was also presented.
The DYFS case worker testified about the reasons for and circumstances of the emergency removal of the children. The neighbor testified that she had resided in the adjoining apartment of a duplex with defendants since 2004. Defendant-mother moved in during spring 2005. They had a neighborly and mutually helpful relationship. However, on several occasions, the neighbor heard loud arguing through the common wall of their homes and became concerned. In late 2006 and early 2007, she recorded two episodes of the loud arguing. Although she did not hear what defendant-father was saying in the recorded arguments, she heard defendant-mother say "leave me alone," "get off of me," and "let me out." She also testified that often, when defendant-mother was outside the home talking to her, defendant-father would stand in the doorway and question her about returning inside.
As to the letter, the neighbor testified that defendant-mother gave her a folded paper inside the neighbor's home on December 14, 2008, and said she would know what to do with it at the right time. The neighbor testified she did not read the letter until three days later. After discussing the contents with family members, DYFS was notified, although not directly by her, and she turned over the letter to DYFS.
On cross-examination, the neighbor testified that since her last recording made in early 2007, the arguing between defendant-parents was not to the same level and intensity. She said she had spoken to them about what she had heard, and the arguing thereafter became more in the nature of normal marital disputes.
In her testimony, defendant-mother now admitted she wrote the letter quoted previously, but she claimed it was all a lie. She described her husband as "a perfect guy." She said she wrote the letter to "get out anger," and she put the letter in a drawer in her house. She claimed she expected the neighbor to find the letter because the neighbor regularly came into their house. In that way, she wanted to catch the neighbor snooping. She gave two reasons at different times for wanting the neighbor to see what she wrote - so that the neighbor would leave her family alone and so that the neighbor would say something to her husband to make him want to move.
In its ruling at the conclusion of the March 12 hearing, the trial court found that defendant-mother's testimony about the letter was not credible. It found that the letter demonstrated a risk of imminent harm to the children that justified their removal and a preliminary order of protection under N.J.S.A. 9:6-8.31 pending a fact-finding hearing. In its order following the removal hearing, the court provided for supervised visitation of the children with defendant-parents.
The fact-finding hearing, in accordance with N.J.S.A. 9:6-8.44, occurred over seven dates from April 2 through December 11, 2009. Defendant-father did not attend but was represented by his attorney at every session, and his attendance was always waived on the record. Defendant-mother was present and represented at each session. By agreement of the parties, the record of the emergency removal hearing was incorporated as part of the record for the fact-finding hearing on abuse or neglect.
DYFS and the Law Guardian presented testimony from three expert witnesses. Two of the experts had interviewed the parents and one had also evaluated the children, including during a supervised visit with the parents. Defendants did not present any expert testimony. In addition to testimony from its own personnel, DYFS also presented the testimony of defendant-father's second wife on the subject of his alleged acts of domestic violence against her and the two children of that marriage. The court heard argument on the admissibility of that testimony and, at the conclusion of the hearing, ruled that it was inadmissible under N.J.R.E. 404(b). In its final decision, the court disregarded the ex-wife's testimony.
A number of exhibits were also admitted in evidence, including the reports of the expert witnesses, a domestic violence final restraining order obtained by the ex-wife against defendant-father in 2002, a judgment of conviction of defendant-father in 2002 for making terroristic threats against his ex-wife, the police reports previously referenced of calls to the house in 2007-2008, the recording made by the neighbor, and the letter written by defendant-mother.
The Law Guardian presented testimony from Alice Nadelman, Ph.D., a licensed psychologist with thirty years of experience in child welfare matters, including her specialty areas of early childhood trauma, development of normal and disrupted attachment, and special needs adoption. Having interviewed and tested both parents for six hours and observed their interaction with the children during a supervised visitation, and having reviewed the documented record of the case, Dr. Nadelman concluded that (1) "there was significant level of actual risk to the children posed by the parental relationship"; and (2) that each "parent individually did not show at this point, the psychological capacity... to provide safe and appropriate parental care on their own." As part of the latter conclusion, Dr. Nadelman noted that defendant-mother had on more than one occasion expressed her own perception that she could not care for the three children by herself.
Dr. Nadelman determined that domestic violence had occurred in the home and that the parents' untreated psychological conditions caused them to pose a high risk of harm to their children's safety and emotional well-being. Her finding of domestic violence grew largely out of the contents of the quoted letter, the tape-recorded arguments, and the history of domestic violence against the ex-wife, but it was also based on the totality of her evaluation of the evidence, including her assessment that defendant-father consistently views himself as a victim and does not take responsibility for his actions.
DYFS presented testimony from Martha Rezeli, an expert in forensic risk assessment. Rezeli has a bachelor's degree in social work and a master's degree in forensic psychology. As an employee of Catholic Charities, she has done extensive work for DYFS in risk evaluations. In this case, she conducted risk assessments of both parents and reported her findings in detailed reports.
As Dr. Nadelman had, Rezeli concluded that domestic violence in the home and the untreated mental conditions of both parents present a high risk of abuse and neglect of the children. She described three types of risks faced by children living in homes where domestic violence occurs: personal safety, witnessing traumatic events, and neglect because of the parents' diversion by the violence. She spoke of studies finding that children who are neglected because of violence in the home show physical signs of that neglect, including developmental delay, behavioral problems, and failure to thrive. She testified that the son in this case has displayed aggression toward adults and other children, and he and the older girl exhibit developmental delay in their speech. The parents have not permitted therapy for the developmental delays while the children are in the custody of DYFS, the mother stating that she can understand her children's speech.
Another witness, a DYFS family services specialist, relayed information about the children since the time of their removal from the home. The boy had been aggressive with his sisters, and at one point, took a vacuum cleaner to his sister's throat, saying "I'm going to kill you."*fn1 The boy told the foster mother on more than one occasion that she was a "bitch" and that he was going to kill her. He had also been aggressive at the school he had been attending, teachers reporting that he had pushed or shoved other children. The boy and the older girl showed substantial speech delays at the outset of their placement. Several months into foster care, both children had made "phenomenal progress."
Some of this testimony was corroborated by Dr. Nadelman, who was called a "bitch" by the three-year-old boy when she prevented him from leaving the room, and also heard the boy call a DYFS employee "bitch" during her observation of the children. At a later point in the hearing, defendant-mother testified that her husband did not use the word "bitch" in their son's presence because his aunt had taught him not to curse.
DYFS also placed in evidence numerous referrals of abuse of the children made by defendant-father since their removal from the home. Almost on a daily basis, the father had made calls or personally complained that his children were being physically abused in the foster home. With a picture of the older daughter showing a small bruise on her arm, he repeatedly claimed that she had been intentionally struck while in the foster home. DYFS found no evidence to support the referrals.
Psychologist Cynthia Lischick, Ph.D., an expert in domestic violence, was called to testify by the Law Guardian regarding her analysis of "the family dynamics." She reviewed more than sixty documents in the case, but did not interview the parents or evaluate the children in person.
Dr. Lischick described the concept of coercive control, which is accepted by experts in her field. She said it was a: malevolent course of conduct directed toward a social partner in order to dominate that partner using strategies of physical abuse, isolation from support systems, intimidation involving threats, degradation involving emotional abuse, confinement [and] can also include surveillance, and restrictions on the ability to move freely and act independently and make autonomous decisions.
In describing coercive control as a type of domestic violence, Dr. Lischick distinguished it from "episodic assault," in which the abuser uses physical assault to resolve conflict but does not necessarily engage in a pattern of conduct designed to control the partner. Although coercive control can and often does include physical violence, it can reach a point where less concrete forms of intimidation and fear are utilized. According to Dr. Lischick, the victim becomes trapped in the coercive control relationship, which has an element of psychological paralysis. The dominant partner incorporates his viewpoint into the victim's thinking so that she begins to see the world through his demands as opposed to her own independent thinking. The victim also incorporates the denial of domestic violence and ultimately blames herself for things going wrong in the relationship. Victims may report the abuse but "regularly" recant.
Consequences to children living in such an environment can include disruptions in attachment and developmental delays, but the most likely outcome is aggression. Young children may also internalize the problems, resulting in stomach problems, fears, and night terrors. ...